from passing on the validity of the sena-
torial apportionment. When the court
failed to rule on senatorial apportion-
ment, the question was appealed. The
Court of Appeals remanded the case for
a decision on this point. The Circuit
Court then found the senatorial appor-
tionment valid, this decision being up-
held by the Court of Appeals.82 The
Court of Appeals' decision was in turn
appealed to the Supreme Court, which
held that the Senate apportionment and
the "stopgap" apportionment of the
House of Delegates were both unconsti-
tutional under the equal protection
clause of the Fourteenth Amendment.83
The Supreme Court directed that the
General Assembly be given an oppor-
tunity to enact the necessary reappor-
tionment of both chambers, but speci-
fied that in no case should the 1966
legislative elections "be conducted pur-
suant to the existing or any other
unconstitutional plan."
In the arguments before the courts
defending the existing apportionments
in Maryland much was made of the
"federal analogy." This analogy was, of
course, to the bases of representation in
the House of Representatives and in the
Senate of the United States Congress.
The comparability of the relationship of
Maryland counties vis-a-vis the State of
Maryland need not be considered here,
for even a cursory examination of the
history of apportionment in Maryland
reveals there has never been an analogy
to the federal system. In the beginning
under the colonial charter all freemen
had a duty to appear in the assembly in
person or by proxy, not to initiate laws
but to pass on laws proposed by the
proprietor. A bicameral system soon
evolved in which the counties were
82 229 Md. 406, 184 A.2d 715 (1962).
83 377 U.S. 656 (1964).
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more-or-less equally represented in the
Lower House while the Upper House
was an aristocratic body, the Council,
holding office at the pleasure of the
proprietor. Following the Revolution,
the counties were given equal represen-
tation in the House irrespective of
population, while the Senate was in-
directly elected. There was here no
parallel to the system adopted under the
United States Constitution. The sub-
sequent constitutions of 1851 and 1864
did not adopt the federal analogy. In
fact, as noted earlier, the convention
that drafted the 1864 Constitution spe-
cifically rejected the federal analogy and
refused to apportion the House of Dele-
gates on the basis of population. The
1867 Constitution in turn not only did
not apportion the House on the basis of
population but instituted limitations
that increased the malapportionment
under the 1864 Constitution. The 1867
Constitution compounded this violation
of the federal analogy by recognizing a
population factor in the Senate with
regard to Baltimore City. Since adop-
tion of the 1867 Constitution, represen-
tation in the Kouse has had progres-
sively less correlation with population,
while the absolute population adjust-
ment for the City of Baltimore has in-
creased in the Senate. But even if both
houses are considered together, there
has been no relevant correlation between
population and total representation in
the General Assembly. In the light of
this history it is difficult to defend the
inequities of Maryland apportionment
on the alleged federal analogy.
The Supreme Court remanded the
case of Maryland Committee v. Tawes
to the Maryland Court of Appeals with
directions that the Maryland courts
need take further affirmative action only
if the legislature did not enact a consti-
147
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